The defendant's appeal is dismissed.

1. The summary of the grounds for appeal is that the Defendant, at the time of the instant case, suffered from ordinary pain due to the suppression attitude of the police officers at the time of the instant appeal, caused breathic and air sulfur disorder symptoms, and caused breathic and side pulmonary pain, and was not measured by the breathic measuring instrument due to the above pain, but did not intentionally breathic or conceal the breathic in the breathic measuring instrument, but the lower court failed to comply with the police officer’s request for the measurement of alcohol without justifiable grounds.

In light of the facts charged in this case, the court below erred by misunderstanding facts and affecting the conclusion of the judgment.

2. Determination

A. The phrase “cases of failing to comply with a police officer’s measurement” under Article 148-2 subparag. 2 of the Road Traffic Act means under the influence of alcohol in light of the overall progress of the case.

a driver who has a reasonable reason to be appointed is objectively and objectively deemed to have no intention to respond to the measurement of drinking.

At this time, the measurement conducted to identify whether a driver is under the influence of alcohol should be understood as a measurement by the respiratory measuring instrument, namely, the method of objectively converting the degree of the driver's practice from the pulmonary test, and the voluntary cooperation of the driver is essential.

따라서 운전자가 음주 측정을 요구 받고 호흡 측정기에 숨을 내쉬는 시늉만 하는 등 형식적으로 음주 측정에 응하였을 뿐 경찰공무원의 거듭 된 요구에도 불구하고 호흡 측정기에 음주 측정 수치가 나타날 정도로 숨을 제대로 불어넣지 아니하는 등 음주 측정을 소극적으로 거부한 경우라면 소극적 거부행위가 일정 시간 계속적으로 반복되어 운전자의 측정 불응의 사가 객관적으로 명백하다 고 인정되는 때에 비로소 음주 측정 불응죄가 성립한다.

On the other hand, the driver is actively aware of it.